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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Appeal GROUNDS Trial judge's reasons adequately explained acquittal Accused shot his common law spouse following a night of heavy drinking and charged with sec- ond degree murder. Trial judge acquitted the accused of second degree murder but convicted him of manslaughter, noting evidence of accident and intoxication. Ma- jority of Court of Appeal set aside acquittal and ordered new trial, finding that trial judge's reasons precluded meaningful appellate review because they did not make it clear whether acquittal based on evidence of intoxication, pos- sibility of accident, or combina- tion of both. Accused appealed. Appeal allowed. Crown's assertion of deficiencies in reasons must be assessed in light of Crown's limit- ed right of appeal from acquittal. Trial judge's reasons adequately explained acquittal. It was clear that reasonable doubt was raised by evidence that shooting might have been accident in which ac- cused's alcohol consumption played role. While reasons fell short of ideal, they were not so inadequate as to impair Crown's right of appeal. R. v. Walker (June 6, 2008, S.C.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 32069) Appeal from 220 C.C.C. (3d) 528 allowed. Order No. 008/161/164 (25 pp.). Family Law PROPERTY Principle of fairness required that debts be considered even where they could not be fully valued at time of separation Parties separated after 12 years of traditional marriage. Trial judge ordered equal division of assets. He also determined that both parties had benefited from tax shelters registered in husband's name and any contingent liability arising from those investments, despite being incapable of quan- tification at time of trial, ought to be equally divided between par- ties. Court of Appeal held that Family Relations Act (B.C.), pre- cluded the kind of "freestanding" division of debt performed by trial judge. It found that specula- tive nature of liability prevented rational adjustment of property to account for potential liability and therefore husband should be solely responsible for contingent liability. Husband's appeal al- lowed. Court of Appeal correctly held that structure of Family Re- lations Act precludes "creating a freestanding obligation between the parties for a debt" but erred in finding that dividing liabil- ity that will crystallize in future necessarily involves creation of such freestanding order. Principle of fairness required that debts be considered even where they could not be fully valued at time of separation. Complete financial situation of both spouses needed to be considered in order to en- sure just result. Family Relations Act does not place any temporal limits on division of assets; it does not preclude order dividing between spouses contingent li- ability which cannot be valued at time of trial. Evidence established that both parties obtained signifi- cant assets and were financially stable after division. Wife expect- ed to soon be self-sufficient and fairness required both spouses to assume responsibility for contin- gent liabilities associated with tax shelters from which they had de- rived benefit. If case of unfairness did arise, grieved person could apply to court for adjustments. Stein v. Stein (June 12, 2008, S.C.C., McLachlin C.J.C., Bastarache, LeBel, Deschamps, Fish, Rothstein JJ. and dissent- ing - Abella J., File No. 31704) Appeal from 156 A.C.W.S. (3d) 399; 36 R.F.L. (6th) 13; 56 B.C.L.R. (4th) 245; [2006] 11 W.W.R. 119; 380 W.A.C. 100 al- lowed. Order No. 008/168/001 (29 pp.). Torts LIBEL AND SLANDER "Honest belief" element of fair comment defence should be modified Appellant appealed Court of Appeal's decision that defence of fair comment was not avail- able. Appellant was well-known "shock jock" radio talk show host. Target of his editorial was respondent, widely known social activist. Respondent brought def- amation action against appellant. Trial judge found that statements complained of were defamatory but dismissed action on basis that defence of fair comment applied. Appeal allowed. There was still role for honest belief in fair com- ment defence. However, it was appropriate to modify "honest belief" element of fair comment defence. Modified test consisted of following elements: comment must be made on matter of pub- lic interest; comment must be based on fact; though it could include inferences of fact, com- ment must be recognizable as AUGUST 25 / September 1, 2008 • Law times COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. comment; and comment must satisfy objective test of whether any person could honestly ex- press opinion on proved facts. Notwithstanding absence of subjective honest belief that re- spondent would condone vio- lence, appellant was entitled to rely on objective test, whether any person could honestly have expressed innuendo that respon- dent would condone violence to- ward gay people on proven facts. Defamatory imputation that while respondent would not en- gage in violence herself she would condone violence by others was opinion that could honestly have been expressed on proved facts by person prejudiced or obstinate in their views. Appellant's fair com- ment defence was not vitiated by malice. Trial judge was correct to allow fair comment defence. Simpson v. Mair (June 27, 2008, S.C.C., McLachlin C.J.C., Basta- rache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Roth- stein JJ., File No. 31608) Appeal from 150 A.C.W.S. (3d) 740; 55 B.C.L.R. (4th) 30; [2006] 10 W.W.R. 460; 376 W.A.C. 1 al- lowed. Order No. 008/184/003 (81 pp.). Trial CHARGE TO JURY Reasoning of Court of Appeal uncomfortably close to "magic incantation" error Accused convicted by jury of sexual assaulting stepdaughter. Complainant and accused were principal witnesses. Court of Appeal overturned conviction, finding that trial judge insuffi- ciently charged jury on duty in event that they did not believe accused. Crown appealed. Ap- peal allowed and conviction restored. Reasoning of Court of Appeal was uncomfortably close to "magic incantation" er- ror. Trial judge explained that any reasonable doubt must re- solved in favour of accused and that, even if they did not accept all of accused's testimony, they could still accept some of it. She explained that they should not see task as deciding between competing versions and simply choosing one. She also remind- ed jury that they must consider all evidence when considering reasonable doubt. Trial judge got across the point of the sec- ond question in W. (D.) without leaving any realistic possibility of misunderstanding. R. v. S. (J.H.) (May 29, 2008, S.C.C., Bastarache, Binnie, LeB- el, Deschamps, Fish, Abella and Charron JJ., File No. 31897) Ap- peal from 217 C.C.C. (3d) 52 al- lowed. Order No. 008/154/057 (17 pp.). www.lawtimesnews.com FEDERAL COURT Social Welfare CANADA PENSION PLAN New evidence raised genuine doubt as to whether Review Tribunal would have reached same conclusion Applicant applied for judicial re- view of decision of Pension Ap- peals Board granting Minister of Social Development leave to ap- peal regarding decision made by a Review Tribunal under Canada Pension Plan. Applicant applied for disability benefits. Minister advised applicant he was ineligi- ble because he should still be able to work. Applicant asked for re- consideration of decision but de- cision was maintained. Applicant appealed decision to the Review Tribunal. Review Tribunal found applicant to be disabled and said disability benefits to commence. Application dismissed. New evi- dence about applicant's reported earnings for 2005 raised genuine doubt as to whether Review Tri- bunal would have reached same conclusion if record of earnings had been before it. Decision of Review Tribunal arguably dem- onstrated lack of analysis rela- tive to medical reports before it. Pension Appeals Board gave no reasons for decision to grant Minister leave to appeal. No stat- utory requirement that reasons be given. Application for leave to appeal and notice of appeal raised an arguable case. Application dis- missed. Samson v. Canada (Attorney General) (Apr. 9, 2008, F.C., Heneghan J., File No. T-1360- 07) Order No. 008/120/021 (10 pp.). ONTARIO CIVIL CASES Bankruptcy And Insolvency TRUSTEE Section 136 of Bankruptcy and Insolvency Act (Can.) does not apply to funeral and testamentary expenses of those who are alive at time of bankruptcy and die after- ward Bankrupt made his assignment into bankruptcy and died less than two weeks later. Issue was entitlement of anyone to be paid funeral expenses incurred of $7,812 as preferred amount under s. 136(1) of Bankruptcy and Insolvency Act (Can.). Sec- tion 136 applies to funeral and testamentary expenses of those individuals who die and whose testamentary estates become bankrupt, and does not apply to funeral and testamentary ex- penses of those who are alive at time of bankruptcy and die after- ward. Disbursement of $7,812 on Statement of Receipts and Disbursements was not proper disbursement. However, due to confusion in law, Trustee's re- muneration was increased in amount equal to disallowed fu- neral expenses in this Estate and this Estate only. Decleva (Re) (Apr. 16, 2008, Ont.S.C.J., Registrar Nettie, File No. 31-272104) Order No. 008/112/132 (4 pp.). Civil Procedure CLASS ACTIONS Motion to strike affidavit in support of motion for certification was dismissed All defendants, but for one, moved for an order to strike af- fidavit filed in support of plain- tiff 's motion for certification and an order to prohibit affiant's continued involvement as an expert in the proceedings. Class action proceeding was brought by plaintiffs who alleged that defendants had engaged in price fixing in production of hydro- gen peroxide; parallel proceed- ings had been commenced in United States. Plaintiffs retained affiant to provide an expert re- port in support of motion for certification. Defendants argued that affiant had been tainted as an expert because he had access to certain protected information only available in United States proceedings. Defendants' posi- tion was that were affidavit to be allowed, plaintiffs would effec- tively receive protection informa- tion forbidden to them by a prior court order. Motion dismissed. Affiant's affidavit would not be struck and affiant should not be disqualified. Affiant's report was sourced and supported by admis- sible evidence, and use of report was for motion for certification which was strictly procedural in nature. Affiant had not been to private litigation strategy or plan- ning; nor had he been involved in prior professional relationship with the defendants. Irving Paper Ltd. v. Atofina Chemicals Inc. (Apr. 15, 2008, Ont.S.C.J., Rady J., File No. 47025/05) Order No. 008/112/126 (18 pp.). COSTS Plaintiff 's conduct did not war- rant substantial indemnity costs Five separate motions had been brought. Relief sought by plain- tiff was dismissed and costs were awarded to defendants. Amount

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